Maximum tenure of 5 years for chiefs of CBI and ED, says SC

The Supreme Court on Tuesday upheld the validity of two central laws and the corresponding rules that provide for a maximum tenure of five years for the directors of the CBI and Enforcement Directorate.

A bench of Justices BR Gavai, Vikram Nath and Sanjay Karol rejected the contention of the petitioners, including some leaders of the Congress and Trinamool Congress, that the amendments made to the Acts will be used as "carrot and stick" by the government of the day to ensure that the chiefs of the two central probe agencies work according to its wishes.     

"The challenge to Central Vigilance Commission (Amendment) Act, 2021 and the Delhi Special Police Establishment (Amendment) Act, 2021 as well as to the Fundamental (Amendment) Rules, 2021 is rejected and the writ petitions are dismissed to that extent," the court ruled.

Giving the reasons, the bench said the apex court in its 1997 verdict in the Vineet Narain versus Union of India case had issued a specific order that the CBI director shall have a minimum tenure of two years.

In its verdict in the case, popularly known as the Jain Hawala case, the apex court had laid down the guidelines to ensure the independence and autonomy of the CBI and ordered that it be placed under the supervision of the Central Vigilance Commission (CVC) instead of the central government. 

Justice Gavai, who penned down the 103-page verdict on behalf of the bench, said what has been provided by the impugned amendments is that the two-year period for which the initial appointment has been made could, in public interest, be extended up to one year at a time. 

"However, this can be done only on the recommendation of the committee which is constituted for their appointments. The second proviso further provided that no such extension shall be granted after the completion of a period of five years in total including the period mentioned in the initial appointment.

"The impugned amendments empower the government to extend the tenure of the incumbent in the said office by a period of one year at a time subject to the maximum period of five years including the period mentioned in the initial appointment," it said.

The bench said such extensions can be granted by the government only if the committees, which are constituted for recommending their appointment, recommend their extension in the public interest and also record the reasons in writing.

"It is, thus, clear that it is not at the sweet will of the government that the extensions can be granted to the incumbents in the office of the director of CBI/director of enforcement. It is only on the basis of the recommendations of the committees which are constituted to recommend their appointment and that too when it is found in public interest and when the reasons are recorded in writing, such an extension can be granted by the government," the bench said.

The bench said by the impugned amendments, the said period of two years for the directors of CBI/ED, as ordered in the 1997 verdict and subsequent judgements, has not been fiddled with.

"By the impugned amendments, the said period is not tinkered with. What has been done is only a power is given to extend their period for a period of one year at a time, subject to a maximum number of three such extensions," the bench said, adding that moreover it has to be done with the concurrence of the panels constituted for their appointment.

"We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the government to extend the tenure of the director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures," the court said.

The bench said it is of the considered view that the challenge to the validity of the two central laws and the related rules has "failed".

The bench noted the petitioners' contention that the amendments will defeat the directive issued by the Supreme Court to have a fixed tenure for the CBI and ED directors and permit a "carrot and stick" policy to be adopted by the executive that would frustrate the very purpose of insulating these high posts from extraneous pressures.         

It noted the ED director can be appointed only on the recommendation of a committee consisting of the central vigilance commissioner (chairman), vigilance commissioners (members), and Union government secretaries in-charge of the ministry of personnel, ministry of home affairs, and secretary to the Government of India in-charge of the department of revenue, ministry of finance.

"The provisions with regard to appointment have been enacted in pursuance to the directions given by this court in the case of Vineet Narain. When a committee can be trusted with regard to recommending their initial appointment, we see no reason as to why such committees cannot be trusted to consider as to whether the extension is required to be given in public interest or not.

"At the cost of repetition, such committee is also required to record reasons in writing in support of such recommendations,” the bench added.